Lam Woon-nang v. The Queen

CACC000138/1971

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 138 OF 1971

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Coram: Full Court (Sir Ivo Rigby C.J., Mills-Owens and Pickering JJ.)

Date of Judgment: 2nd June, 1971.

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JUDGMENT

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1. In this case we allowed the appellant's appeal against his conviction of murder on the verdict of a jury on the ground of misdirection, and we refused to order a new trial intimating that we would reduce our reasons to writing.

2. It is unnecessary to discuss the misdirection in any great detail. Quite clearly the jury were told on a number of occasions that, as the appellant had chosen to give evidence, his version must be weighed on the basis of the balance of probabilities as to its credibility or otherwise. Almost at the end of the summing-up the learned Commissioner said -

"Now, it is not for him to establish his innocence but he has offered an explanation. Now, is that a reasonable explanation in your mind? Mind you, when you find whether it is reasonable, you will find it is on the balance of probability. You need not have anything beyond a reasonable doubt. When an explanation comes from an accused person, he will only have to satisfy you to tip the balance of the scale."

At the conclusion of the summing-up both Crown counsel, Mr. Caird, and defence counsel, Mr. Donnelly, addressed the Commissioner to the effect that this direction suggested that there was an onus on the accused and that such onus was to be discharged by him on the balance of probabilities. A number of exchanges occurred between the Commissioner and counsel, in the presence of the jury, which unfortunately did little to amend the substance of the misdirection, the Commissioner repeating on a number of occasions that the accused's explanation was to be accepted or rejected on the balance of probabilities. It is true that in his concluding remarks the learned Commissioner went some way towards correcting the error, when he said -

"Well, I would be quite happy to adopt this that I think I have sufficiently guarded in this respect is that at all times from beginning to end, members of the jury, it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. It is never for the accused to establish his innocence and he doesn't have to prove anything at all, but, if he chooses to give evidence, he is entitled to have his evidence considered, and if you are considering his evidence on the balance of probability, and you feel that it is equally consistent with innocence as with guilt, you must give the accused the benefit of doubt and acquit him."

But even this passage may be taken as suggesting an onus on the accused when he gives evidence, and an onus to be discharged in a particular way; further it fails to make it abundantly clear to the jury that, even if they do not believe the accused's version, if it raises a doubt in their minds he is entitled to be acquitted.

3. Crown counsel, quite properly, informed us at the outset of the appeal that he could not support the conviction. We entirely agreed and accordingly allowed the appeal. It is perhaps desirable to refer to two of the leading authorities on a possible manner of addressing the jury where the accused has given evidence. In the case of Murtagh and Kennedy⁽¹⁾, a Full Court of Criminal Appeal said -

"Having regard to the evidence, it was preeminently a case where it was essential for the judge to make clear to the jury three possible positions in which the jury might find themselves, bearing in mind throughout that it was not for the accused to establish their innocence: that is to say (1) If they accepted the explanation of the accused, they must acquit. (2) Short of accepting that explanation, if it left them in doubt, they must acquit. (3) On consideration of the whole of the evidence they must be satisfied of the guilt of the accused of one or other of the crimes alleged against them."

In the case of Lobell⁽²⁾, Lord Goddard C.J., delivering the judgment of the Court, said: -

"A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution, but that they must also consider the evidence for the defence, which may have one of three results: it may convince them of the innocence of the accused, or it may cause them to doubt, in which case the defendant is entitled to an acquittal, or it may and sometimes does strengthen the case for the prosecution."

We would add that it is the view of this Court that, in summing up to a jury, reference to the balance of probabilities is dangerous, except when the direction is as to the onus of proof upon an accused to rebut a presumption which the law raises against him.

4. We turn to the matter of our refusal to order a new trial, and would preface our views by saying that as yet the Full Court in Hong Kong has not sought to lay down any precise rules as to the cases in which a new trial should be ordered when the proviso is not applied. We were referred to a number of authorities. First, we would refer to three cases in the Hong Kong courts.

5. In the case of Cheng Hing U v. R.⁽³⁾ which was a case where a conviction was quashed by reason of failure to give a direction as to accomplice evidence, the Court (Sir Atholl MacGregor C.J., Hayden J. concurring) said, at p.55 -

"In the present case I have no desire to minimise the heinousness of the offence, which is one of the utmost gravity, and which goes to the root of the administration of public affairs. But at the same time one has to remember that this prosecution was undertaken after the fullest opportunity for complete investigation by the Crown, and that the whole force of the evidence marshalled against the accused depends on two witnesses, neither of whom can possibly be said to be untainted. Even if a new trial were ordered I find it difficult to believe that the Crown could marshal more evidence against the accused than that adduced at the trial. If I am right in my surmise, then I go further and say that upon a retrial of this case a conviction based on such evidence as was adduced at the trial would be improper. I do not propose to inflict upon the accused the anxiety of undergoing a new trial."

That case was referred to in R. v. Ng Yuk Kin⁽⁴⁾ in which a Full Court presided over by Sir Trevor Gould said, at pp.59-60 -

In that case, in which the charge was rape, the Court had held that the danger of acting without corroboration had not been sufficiently brought home to the jury. The Court considered that there was "ample - in fact overwhelming - corroboration of intercourse" but there remained a defence of consent put forward by way of unsworn statement and in vague terms. Clearly the Court considered that there was a strong case against that appellant.

6. In a later case, that of Wong Ching Chu and others v. R.⁽⁵⁾, a Full Court consisting of Sir Michael Hogan C.J. and Sir Trevor Gould, whilst refusing to order a new trial in that case, expressed the view (at pp.79-80) that -

"in determining whether or not a new trial should be ordered the paramount consideration must be the fair and proper administration of justice and that the conduct of the prosecution and its effect on the position of the accused at a further trial are factors, but not necessarily the determining factors, to be taken into account in determining whether a new trial should, in the interests of justice, be ordered."

7. We were referred also, by Crown counsel, to three East African cases. The case of Salim Muhsin v. Salim Bin Mohammed and Others⁽⁶⁾ concerned a prosecution for non-payment of wages and the judgment of the Court of Appeal for Eastern Africa is not fully reported. The Court overruled an order which had been made below for a new trial and the headnote reads -

"Held - The High Court has a discretion to order a retrial but in this case the discretion had not been judicially exercised. The conviction had been quashed by reason of misdirection by the Magistrate. Although this may not have been the fault of the prosecution the important consideration is that it was not the fault of the accused. The order for a retrial would be set aside."

8. In the case of R. v. Suke, Njoka and Kitadu⁽⁷⁾, the same Court of Appeal held the joint trial of the three accused persons for murder to be a nullity by reason of the trial judge having convicted the first and third appellants before the second appellant had concluded his defence, with the result that the first and third appellants had no opportunity to cross-examine a witness called for the second appellant and no opportunity to make their addresses with respect to that evidence so far as it affected them. The Court, in a judgment delivered by Sir Barclay Nihill said, at p.135 -

"We have come to the conclusion that this is a proper case for this Court to order a new trial. This Court will not exercise this power in order to allow a prosecution to fill a gap in its case against an appellant which might have been filled at the first trial and it would hesitate to do so where a nullity was declared on account of an irregularity for which the prosecution was responsible. Neither of the above considerations applies to the present case. Had the joint trial of the three appellants proceeded on its proper course it is probable that all three of them would have been adjudged guilty by both Judge and assessors. We therefore order that the convictions of the three appellants be quashed and the death sentences set aside. The three appellants are remanded in custody to be retried in the High Court by a different Judge."

It will be observed that this was a case where the trial was held to be nullity and where the Court of Appeal obviously thought that there was a strong case against the accused.

9. In Braganza v. R.⁽⁸⁾ the same Court of Appeal was concerned with an appeal against an order made below for a new trial, on a charge of theft. In upholding the order the Court said -

"We accept the principle that re-trial should not be ordered unless the Court is of opinion that on a proper consideration of the .............. evidence, a conviction might result."

10. Since the hearing of the appeal we have referred to other material, including the Report of the Tucker Committee in 1954 (Cmd. 9150) where the much and long debated question of investing the English Court of Criminal Appeal with power to order a new trial was the matter under consideration. The Committee obtained evidence from a number of countries in which such a power exists, including the States of Australia, the Provinces of Canada, New Zealand and Ceylon. Appendix V to the report summarises (inter alia) what these territories considered to be the main advantages. The large majority referred to the advantage that a guilty person is prevented from escaping the consequences owing to some irregularity or technicality. (See also Professor Goodhart's Article "Acquitting the Guilty" 70 L.Q.R. 514, and the Article "Convicting the Guilty" by Michael Knight in (1966) C.L.R. 24).

11. We have referred also to the case of Mraz v. R.⁽⁹⁾ in the High Court of Australia where Fullagar J. makes reference to ordering a retrial, at pp.516-7; it is apparent from that learned judge's remarks that the weakness of the evidence in that case weighed with him in coming to the conclusion that a retrial ought not to be ordered. Further, according to the short note of the case of Jackman v. R.⁽¹⁰⁾ appearing in the Australian Digest (p. 819), which was a murder case where the conviction was set aside on the ground of misdirection, McMillan C.J. is stated to have said that he would hesitate to order a new trial in a murder case unless he felt some certainty as to what the result would be; he is quoted as saying also -

"This is a case where there is a good deal of room for doubt. We have, therefore, come to the conclusion that we ought not to exercise our discretion by granting a new trial."

R. v. Lailey⁽¹¹⁾, noted at p. 808 of the Digest, appears to be a similar case. To the same effect is the New Zealand case of R. v. Blyth⁽¹²⁾, where the New Zealand Court of Appeal considered that a conviction on a second trial, would be "improbable".

12. Without attempting to delimit the type of case in which a new trial ought to be granted, whether as opposed to applying the proviso or otherwise, we take the view that, notwithstanding that the conviction is quashed otherwise than by reason of any fault on the part of the prosecution, a new trial ought not to be granted in any case in which the evidence is so weak as virtually to render it a matter of chance whether the accused will be convicted or acquitted on the new trial. In such a case it would be unjust to subject the accused to the considerable ordeal of a second trial. In our view, the case with which we are now concerned fell clearly within that category, so that in the exercise of our discretion we considered that a new trial should not be ordered. The deceased was attacked by a group of four or five persons armed with long instruments who dispersed on the arrival of the police. Subsequently two bamboo poles were found nearby. The medical evidence indicated, as the cause of death, blows to the skull consistent with the use of those weapons. The attack took place in the dark. A police officer purported to identify the appellant as one of the group who ran away from the scene and whom he chased through a number of streets and ultimately arrested. There was no distinct evidence that the appellant was armed, with a bamboo pole or otherwise. The evidence on the point, as Crown counsel conceded, was entirely general, namely that there was a group of four or five persons attacking the victim with long objects. According to the appellant, he was there simply out of curiosity. It is apparent that the bamboo poles were hardly lethal weapons unless wielded with very great force and upon peculiarly sensitive portions of the victim's body. In short, there was obviously room for considerable doubt, first whether the appellant took any part whatsoever in the attack, and secondly even if he did so, whether he shared in a common intent to kill the deceased or cause him grievous bodily harm.

13. It was for these reasons that the appeal was allowed and the order for a new trial refused.

14. In conclusion, before departing from this case we find it necessary to make the following observation. The Criminal Procedure (Amendment) Ordinance, No.5/71 came into force on the 26th of February, the very day upon which the judge was summing up. Section 6 of that Ordinance added to the principal Ordinance section 65A which introduced an important amendment to the law in regard to intent. Neither the judge nor counsel were aware, or could reasonably have been aware, that as from midnight the law had been altered in a very material respect. The fact that the judge summed up in accordance with the old law constituted the third ground of appeal. If important amendments are to be made to the criminal law it would seem both illogical and impracticable that they should be brought into force some hours before the Gazette is in the hands of judges, magistrates and lawyers in the Colony. We think this is a matter that should be brought to the notice of the Attorney General and we can only hope that there will be no recurrence of this situation.

Representation:

Donnelly (David Fung & Co.) assigned for Appellant.

Caird, C.C. for Crown/Respondent.

(1) (1955) 39 Cr. App. R. 72 at p.83

(2) (1953) 41 Cr. App. R. 100 at p. 104

(3) (1935) 27 H.K.L.R. 53.

(4) (1955) 39 H.K.L.R. 49.

(5) (1957) H.K.L.R. 61.

(6) (1950) 17 E.A.L.R. 128.

(7) (1947) 14 E.A.L.R. 134.

(8) (1957) B.A.L.R. 152.

(9) (1955) C.L.R. 193

(10) (1914) 16 W.A.L.R. 8.

(11) (1956) S.A.S.R. 153.